10th Circuit Addresses Jurisdiction and Drug Trafficking

In Mena-Flores v. Holder, the 10th Circuit addressed the jurisdiction-stripping provision that relate to review of removal orders of non-citizens who are removable for criminal reasons, as well as the jurisdiction-stripping provision that precludes review of the granting of discretionary relief. With regard to the former, the court determined that the jurisdiction-stripping provision only applied to those individuals who had been found removable by the agency based on criminal grounds. In this case, although the Immigration Judge found that a criminal ground of inadmissibility barred Mena-Flores from adjusting his status, he was not found removal on this ground, and thus, the court of appeal retained jurisdiction to review the agency's decision. Similarly, the court retained jurisdiction to review the Immigration Judge's denial of Mena-Flores' adjustment of status application (a discretionary form of relief) because the denial was based on statutory, not discretionary, grounds.

The statutory bar at issue is section 212(a)(2)(C) of the Immigration and Nationality Act (reason to believe that the individual has engaged in drug trafficking). The court upheld the Immigration Judge's application of this bar, even though Mena-Flores never admitted to trafficking, was never observed with drugs by law enforcement, and had no criminal record. Instead, the hearsay testimony at the criminal trial by several witness was substantial and probative enough to support the Immigration Judge's finding of inadmissibility.

The full text of the decision can be found here: http://www.ca10.uscourts.gov/opinions/13/13-9532.pdf